United States v. Berkley, Michael ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
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Nos. 02-1662 & 02-1949
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL BERKLEY AND
VAL JEAN HILLMAN,
Defendants-Appellants.
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Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 31—Charles R. Norgle, Sr., Judge.
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ARGUED FEBRUARY 18, 2003—DECIDED JUNE 20, 2003
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Before RIPPLE, DIANE P. WOOD, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. Val Jean Hillman certainly isn’t
the first buyer to pay an exorbitant sum of money for a
house in Chicago. But he was more than willing to do so.
That’s because his purchase came as part of an elaborate
series of flip transactions in which buyers acquired prop-
erty for up to ten times their value, then left mortgage
lenders holding an empty bag.
Under the direction of mastermind Henry White, one
schemer paid fair market value to purchase each of
seven Chicago properties. Then, misrepresenting the
2 Nos. 02-1662 & 02-1949
value of the property and hiding the true identities of the
buyers and sellers and the source of funds for the down
payments, a second schemer obtained inflated mortgage
loans to finance a subsequent purchase of each property
at a tremendously inflated price. For each property, the
second buyer then defaulted on the mortgage, taking the
money from the inflated mortgage and leaving the mort-
gage lender with property worth substantially less than
the amount of the loan. Altogether, White and friends
ran off with more than $2 million that never would have
been available to them absent fraudulent appraisals that
persuaded lenders to authorize mortgage loans on the
properties.
Hillman, who was a patent attorney at Motorola, served
as an investor and a buyer in the scheme, providing down
payments for the inflated sales to straw buyers, then
getting that money back plus a substantial profit after
the sales closed. In two of the properties at issue in this
appeal, the schemers used fraudulent appraisals to obtain
mortgages from UMG Funding, Inc., a mortgage broker
who later sold one of the mortgage loans to Plaza Home
Mortgage Bank (as described in count 1 of the indict-
ment) and the other to Capstead Mortgage Corporation
(count 3). The underwriters who approved the loans for
UMG testified that UMG would not have made the loans
if it had known the true nature of the purchases.
Hillman and Michael Berkley, a loan processor for UMG,
were charged along with six others in a seven-count
indictment. After their six cohorts pleaded guilty, Hillman
and Berkley went to trial. A jury found Hillman guilty on
three counts of wire fraud affecting a financial institu-
tion in violation of 18 U.S.C. §§ 2 and 1343. The jury also
found Berkley guilty on one of two similar counts. The
district court sentenced both men to 27 months imprison-
ment and ordered them to pay hundreds of thousands of
dollars in restitution. Hillman and Berkley appeal their
Nos. 02-1662 & 02-1949 3
convictions, essentially challenging the sufficiency of the
evidence but acknowledging, because they failed to lodge
a motion for a judgment of acquittal at the close of all
the evidence or within 7 days after the adverse verdict,
that they must show plain error to prevail. See United
States v. Taylor, 226 F.3d 593, 596 (7th Cir. 2000). There-
fore, we will reverse their convictions only if we find a
manifest miscarriage of justice. And we can make that
finding only “if the record is devoid of evidence pointing
to guilt, or if the evidence on a key element of the offense
was so tenuous that a conviction would be shocking.” United
States v. Meadows, 91 F.3d 851, 854-55 (7th Cir. 1996).
Though he does not explicitly admit to his part in the
schemes described in counts 1 and 3 of the indictment,
Hillman does not really deny his role, either. Instead, he
claims the indictment was so narrowly written that it
did not include his conduct, and, as a result, the district
court should have entered a judgment of acquittal.
UMG’s role in the schemes provides the basis for Hill-
man’s claim. The schemers tricked UMG into granting
the mortgage loans, which it then sold to Plaza Home
and Capstead. Hillman makes two intertwined claims: that
the government’s evidence showed only an intent to de-
fraud UMG, not the “lenders,” as described in the indict-
ment; and that the district court constructively amended
the indictment with its jury instructions, which allowed
for a conviction if the jury found a scheme to defraud “a”
financial institution, not just one of the institutions named
in the indictment.
Counts 1 and 3 of the indictment charged Hillman with
wire fraud in violation of 18 U.S.C. § 1343 and aiding and
abetting the violation by “knowingly divis[ing] and
intend[ing] to devise a scheme and artifice to defraud Plaza
Home Mortgage, Texas Commerce Bank, Fidelity Bank, and
private mortgage lenders, including Long Beach Mortgage,
4 Nos. 02-1662 & 02-1949
Capstead Mortgage Corporation, Residential Funding
Corporation, and Ryland Mortgage (collectively, the ‘Lend-
ers’) . . . .” Hillman argues that since the indictment
charged him solely with intending to defraud Plaza
Home and Capstead (and not UMG), the government
should have been required to prove he had the specific
intent to defraud Plaza Home and Capstead. Hillman is
correct in claiming that the government did not prove that
he intended to defraud Plaza Home or Capstead, nor could
it have. Hillman intended only to defraud UMG—after
fraudulently convincing UMG to supply the initial loans,
Hillman didn’t know or care whether or to whom UMG
would sell them.
The government uses similar logic to make the opposite
argument. It admits that it cannot prove that Hillman had
the specific intent to defraud any particular financial
institution because Hillman did not care which lender or
broker possessed the mortgage when the borrowers de-
faulted. That means, according to the government, that
requiring it to prove that Hillman had the specific intent
to defraud a particular financial institution makes no
sense because that would be an impossible burden to carry.
Though true in a sense, the government’s argument
misses Hillman’s point. Hillman doesn’t contend that the
government should always have to prove the specific
intent to defraud a particular financial institution in cases
like this, only that the government brought the specific
intent requirement upon itself by failing to include UMG
in the indictment. Citing United States v. Leichtnam,
948 F.2d 370, 377 (7th Cir. 1991) (“an indictment . . . may
not be broadened, so as to present the trial jury with
more or different offenses than the grand jury charged”),
Hillman says that the government made the decision to
proceed on a narrow indictment. As a result, it is stuck with
that choice and must prove that Hillman intended to
defraud Plaza Home and Capstead, not UMG. In fact,
Nos. 02-1662 & 02-1949 5
Hillman conceded during oral argument that the govern-
ment could have written a broader indictment that would
have precluded his appeal on counts 1 and 3.
That concession, along with Hillman’s related claim that
the district court constructively amended the indictment
by broadening it in its jury instructions, highlights the
fine line the government must walk in crafting an indict-
ment. With a narrow indictment, the government runs
the risk of being too specific, leading to claims of unfair
surprise like the one Hillman makes here if the evidence
goes beyond the scope of the indictment. But drafting
an overly broad indictment runs the risk of opening the
government up to the very same charge of unfair sur-
prise because a broad indictment also fails to warn the
defendant of the true nature of the allegations. See United
States v. Trennell, 290 F.3d 881, 888 (7th Cir. 2002) (“[T]he
Fifth Amendment requires . . . giv[ing] the defendant
reasonable notice so that he may prepare a defense”
(internal quotations omitted)).
Here, the government was close enough to the line to
give Hillman reasonable notice and opportunity to plan
his defense. Hillman argues that, by stipulating to the
fact that UMG was “in the business of brokering mort-
gage loans to mortgage lenders,” UMG cannot be one of
the unnamed “private mortgage lenders” listed along
with Plaza Home, Capstead, and others in the indictment.
But the fact that UMG was defined as a broker does not
mean that it was not also a lender. UMG generally acts
as a broker, making loans and then selling them. For the
short time in each of those deals after UMG has made the
loan but before it can sell it, however, UMG acts as a
private mortgage lender. In that sense, UMG was listed
with Plaza Home and Capstead in the indictment, even
though the economic reality of the transaction made
Plaza Home and Capstead the true victims of the scheme.
6 Nos. 02-1662 & 02-1949
More significantly, several parts of the indictment refer
specifically to UMG and its role. Paragraphs 16 and 17
describe the fraudulent securing of the $352,000 mortgage
loan for the 4553 South Ellis property (count 1), and
paragraph 21 specifically names UMG Funding in describ-
ing the sale of that mortgage to Plaza Home. Similarly,
paragraph 39 describes UMG Funding’s role with respect
to the property at 4547 South Ellis (count 3). Taken as
a whole, the indictment describes UMG as a victim and
adequately put Hillman on notice of that fact. Therefore,
the district court did not commit plain error in failing
to enter a judgment of acquittal on counts 1 and 3.
Similarly, the district court did not err by constructively
amending the indictment in its jury instructions. The
district court may have broadened the indictment by
allowing the jury to convict if it found intent to defraud
any financial institution (as opposed to one specifically
named or a “private mortgage lender” as defined in the
indictment), but we need not reverse the judgment be-
cause that constructive amendment does not “constitute
a mistake so serious that but for it the [defendant] prob-
ably would have been acquitted . . . .” Trennell, 290 F.3d
at 887 (internal quotations omitted). Had the jury instruc-
tion been limited to the financial institutions named or
referred to in the indictment (including UMG as a “private
mortgage lender”), the jury almost certainly would have
reached the same result, as all of the evidence the jury
considered went to Hillman’s dealings with those finan-
cial institutions.
Hillman also argues that the district court erred in fail-
ing to enter a judgment of acquittal on count 4 of the
indictment, which charged Hillman for his role in a similar
flip transaction on a different property. Hillman claims
the government failed to prove that he knew there was a
scheme to defraud, so the government could not have
proven that he intended to participate in the scheme.
Nos. 02-1662 & 02-1949 7
Hillman supplied the buyers of the property described in
count 4 with $46,000 for a down payment, then promptly
received a check for $56,000.
Hillman’s argument has little merit. He knew about
the schemes White had orchestrated, having already
participated in several of them. As evidence of that knowl-
edge, the government showed that Hillman had ap-
proached White to demand a larger share of the illegally
obtained profits. Finally, evidence showed that when
Hillman was shown an appraisal for $425,000 (nearly 10
times the property’s fair market value), he “kind of laughed
about it.” Therefore, a reasonable jury had plenty of
evidence to conclude that Hillman was a knowing and
willing participant in the scheme.
Berkley also claims the government failed to present
sufficient evidence to support his conviction. Berkley
was working as an office manager at UMG when he met
White, who brought Berkley into the scheme by offering
him $5,000 to help with the loan application for one of
the properties. Berkley wrote up the loan application,
overstating the buyer’s income and assets in the process
and falsely stating that the buyer intended to live in the
property. The application also falsely stated that the buy-
er would provide the down payment and that the buyer
had $65,000 on hand at AFG International, a company
controlled by White. Berkley then submitted the loan
application to Chicago Financial Services, a mortgage
broker which in turn sent the loan package to Ryland
Mortgage Corporation. Ryland approved the request and
granted a $336,000 loan. A week after the deal closed,
White paid Berkley $6,500.
Berkley admits to working on the loan application but
claims that he was not aware that the information he
was providing was false. As a result, he says he did not
have the intent to defraud required under 18 U.S.C. § 1343.
8 Nos. 02-1662 & 02-1949
At trial, though, an FBI agent testified that Berkley told
him that he knew the buyer would not be supplying
the down payment, and that the buyer could not have
had $65,000 at AFG International. That evidence was
sufficient for a reasonable jury to find that Berkley knew
he was providing false information, thus satisfying the
intent requirement.
AFFIRMED.
A true Copy:
Teste:
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Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-20-03